United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 31, 2016*

Decided June 1, 2016

Before

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 15-3728

LONZO J. STANLEY,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 15-cv-222-bbc

Barbara B. Crabb,

Judge.

O R D E R

More than a decade ago, Lonzo Stanley was found to be a career offender under 

the sentencing guidelines, see U.S.S.G. § 4B1.1, and ordered to serve 200 months’ 

imprisonment. After the Supreme Court issued its opinion in Johnson v. United States, 

135 S. Ct. 2551 (2015), Stanley filed this action under 28 U.S.C. § 2255 challenging his 

sentence. Stanley reads Johnson as support for his contention that two of three 

 

* After examining the briefs and the record, we have concluded that oral 

argument is unnecessary. Thus the appeal is submitted on the briefs and the record.

See FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 15-3728 Page 2

convictions used in finding him to be a career offender were misclassified as crimes of 

violence, leaving him with fewer than the two qualifying convictions necessary for 

§ 4B1.1 to apply. The government did not insist that its procedural defenses be 

addressed by the district court, instead arguing that Stanley’s motion would fail on the 

merits. The district court agreed with the government that Johnson does not undermine 

the application of § 4B1.1 to Stanley, but issued a certificate of appealability authorizing 

him to bring this challenge to the denial of his § 2255 motion. We affirm that decision.

Stanley pleaded guilty in 2004 to distributing crack cocaine, 21 U.S.C. § 841(a)(1). 

At sentencing the district court concluded that Stanley’s convictions in Illinois for

delivery of a controlled substance, unlawful possession of a weapon by a felon, and 

aggravated battery of a peace officer made him a career offender. See U.S.S.G. §§ 4B1.1, 

4B1.2. Stanley did not appeal his sentence.

Stanley’s § 2255 motion asserts that after Johnson his convictions for unlawful 

possession of a weapon and aggravated battery cannot be classified as crimes of violence

for purposes of § 4B1.1. In Johnson, 135 S. Ct. at 2557, the Court held that the “residual

clause” in the definition of “violent felony” from the Armed Career Criminal Act,

see 18 U.S.C. § 924(e)(2)(B), is unconstitutionally vague, meaning that a conviction no 

longer can be deemed a violent felony on the ground that the offense involved “conduct 

that presents a serious potential risk of physical injury to another.” See id. Johnson

announced a new rule that applies retroactively, Welch v. United States, 136 S. Ct. 1257

(2016), and Stanley presumes that Johnson’s reasoning applies equally to the identically 

worded residual clause in the definition of “crime of violence” applicable to the career 

offender guideline. See U.S.S.G. § 4B1.1(a)(2). And it follows, Stanley continues, that 

possession of a weapon by a felon and aggravated battery would no longer qualify as 

crimes of violence. 

Stanley is correct that the gun crime isn’t a crime of violence, but the reason has 

nothing to do with Johnson. Long before that decision—indeed, before Stanley was 

sentenced—the Sentencing Commission had made clear that a felon’s possession of a 

gun that could be possessed lawfully by a non-felon is not a crime of violence. 

See U.S.S.G. App. C, Am. 433 (Nov. 1991); Stinson v. United States, 508 U.S. 36, 47 (1993). 

So Stanley’s § 2255 claim arguably should have ended there, since this pre-Johnson

challenge to the characterization of the gun offense as a crime of violence had been

procedurally defaulted and Stanley concedes that his third conviction (for delivery of a 

controlled substance) counts toward the two necessary to make him a career offender. 
No. 15-3728 Page 3

Again, though, the government is content to forego its procedural defenses, 

which brings up Stanley’s conviction for aggravated battery of a peace officer. Stanley’s 

indictment for aggravated battery charges that he “intentionally or knowingly caused

bodily harm” to a peace officer, see 720 ILCS 5/12-3, 5/12-4(B)(6) (1997), which is a crime 

of violence because the use of force is an essential element. See Hill v. Werlinger, 695 F.3d 

644, 649–50 (7th Cir. 2012). But Stanley asserted that he might have pleaded guilty to a 

different subsection of the battery statute that involves insulting and provoking conduct,

which is not a crime of violence, see United States v. Hampton, 675 F.3d 720, 729 (7th Cir. 

2012). But this, too, is a claim that has nothing to do with Johnson, which explains the 

district court’s conclusion that Stanley was trying to use Johnson as cover for an untimely 

claim based on Begay v. United States, 553 U.S. 137 (2008). In any event, on the merits the 

district judge reasoned that Stanley’s conviction for aggravated battery does not rest on 

the residual clause because the indictment charges him with a violent battery, and he did

not aver that he instead pleaded guilty to a nonviolent battery. 

The district court’s reasoning is correct. The Illinois battery statute is divisible,

see United States v. Rodriguez-Gomez, 608 F.3d 969, 973 (7th Cir. 2010), so a sentencing 

court may examine the charging papers, plea colloquy, and any judicial findings or 

admissions to ascertain the nature of the conviction, see Shepard v. United States, 544 U.S. 

13 (2005). The indictment charges a violent battery, see 720 ILCS 5/12-3(a)(1) (1997), and 

though the judgment of conviction does not confirm that Stanley pleaded to the 

indictment without revision, it was his burden in this collateral proceeding to allege and 

prove the facts necessary to substantiate his claim. See Hawk v. Olson, 326 U.S. 271, 279 

(1945); Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015). When a statute is 

divisible, “a silent record leaves up in the air whether an error has occurred, and the 

allocation to defendant of the burdens of production and persuasion makes a 

difference.” United States v. Ramirez, 606 F.3d 396, 398–99 (7th Cir. 2010). Stanley easily 

could have introduced his plea agreement or records of the plea colloquy to show which 

version of the offense he pleaded to, and his failure to do so implies that those 

documents would hurt, not help, his claim. See United States v. Aviles-Solarzano, 623 F.3d 

470, 475 (7th Cir. 2010). On this record Stanley did not carry his burden of showing that 

the sentencing court erred in classifying the aggravated battery as a crime of violence, 

and that conviction, along with his unchallenged conviction for a controlled-substance 

offense, makes him a career offender. 

AFFIRMED.